In the matter of Longjing Pty Ltd [2017] NSWSC 1534

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Longjing Pty Ltd [2017] NSWSC 1534 Hearing dates: 27 October 2017 Date of orders: 14 November 2017 Decision date: 14 November 2017 Before: Gleeson JA Decision: (1) That the statutory demand dated 4 August 2017, served on the plaintiff by the defendant, be set aside.

(2) Defendant to pay the plaintiff's costs. Catchwords: CORPORATIONS – application to set aside a statutory demand – whether "some other reason" to set aside the demand under Corporations Act 2001, s 459J(1)(b) – where demand was served accompanied by a Service and Execution of Process Act 1992 (SEPA) notice – where applicant company not misled by the unnecessary SEPA notice and brought and served application to set aside the demand within 21 day period – whether unnecessary SEPA notice constitutes an "other reason" to set aside demand.

CORPORATIONS – application to set aside a statutory demand – whether "some other reason" to set aside demand under s 459J(1)(b) includes that the debt the subject of the demand is not presently due and payable – where common ground that a "standstill" agreement was entered into between the creditor and the company precluding the enforcement of judgment debt if the debtor expeditiously pursued litigation against a third party – where dispute as to whether company had expeditiously pursued such litigation – whether applicant discharged onus of showing plausible contention requiring investigation that the debt was not presently due and payable by reason of the "standstill" agreement – consideration of standard of proof to set aside a demand for an "other reason" within meaning of s 459J(1)(b). Legislation Cited: Corporate Law Reform Bill 1992 (Cth) Corporations Act, 2001 (Cth), ss 9, 58AA, 142, 459E, 459G, 459H, 459J Corporations Regulations 2001 (Cth), form 509H Service and Execution of Process Act, 1992 (Cth), ss 9, 16 Uniform Civil Procedure Rules, 2005 (NSW), r 42.1 Cases Cited: Beta Trading Co Pty Ltd v Specialised Laminators (1996) 15 ACLC 270 Britten-Norman Pty Ltd v Analysis & Technology Australia Pty Ltd (2013) 85 NSWLR 601 Daewoo Australia Pty Ltd v Suncorp Metway Ltd (2000) 48 NSWLR 692; [2000] NSWSC 35 Edwards v Hunter Valley Co-op Dairy Co Ltd (1992) ANZ Ins Cases 61-113 Gucce Holdings Pty Ltd v Deputy Commissioner of Taxation [2017] HCASL 72 Hoare Bros Pty Ltd v Commissioner of Taxation (1996) 62 FCR 302 Howship Holdings Pty Ltd v Leslie (No 2) (1996) 41 NSWLR 542 In the matter of Tuffrock Pty Ltd [2015] NSWSC 738 Meehan v Glazier Holdings Pty Ltd [2005] NSWCA 24; (2005) 53 ACSR 229 Midland Imports Pty Ltd v Asia Pacific International Pty Ltd [1999] NSWSC 12 MNWA Pty Ltd v Deputy Commissioner of Taxation [2016] FCAFC 154; (2016) 117 ACSR 446 MNWA Pty Ltd v Deputy Commissioner of Taxation (No 2) [2015] FCA 1128; (2015) 109 ACSR 265 NT Resorts Pty Ltd v Deputy Commissioner of Taxation (1998) 16 ACLC 957 Portrait Express (Sales) Pty Ltd v Kodak (Australasia) Pty Ltd (1996) 20 ACSR 746 Re HM Drinkwater (1929) 46 WN 202 Re MK Group Phoenix Pty Ltd [2014] NSWSC 1467 Rochester Communications Group Pty Ltd v Lader Pty Ltd (1997) 23 ACSR 380 Saferack Pty Ltd v Marketing Heads Australia Pty Ltd [2007] NSWSC 1143 Scandon Pty Ltd v Dome Supplies Pty Ltd (1995) 17 ACSR 662 Spencer Constructions Pty Ltd v G&M Aldridge Pty Ltd (1997) 76 FCR 452 Streetwise v Higgins [2005] NSWSC 535 Tayros Holdings Pty Ltd v Dyar (1997) 15 ACLC 1652 The Queen v Australian Broadcasting Tribunal; Ex Parte No 2 HD Pty Ltd (1979) 144 CLR 45 Category: Principal judgment Parties: Longjing Pty Ltd (Plaintiff) Hammer Brothers Pty Ltd (Defendant) Representation: Counsel: MJ Stevens (Plaintiff) A Combe (Defendant)